Citation Nr: 1033238
Decision Date: 09/03/10 Archive Date: 09/13/10
DOCKET NO. 08-29 151 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for bilateral plantar
fasciitis.
2. Entitlement to service connection for bilateral hip
arthritis.
3. Entitlement to a compensable initial rating for right
shoulder arthritis.
4. Entitlement to a compensable initial rating for a lumbar
spine disability for the period beginning January 1, 2005, and a
rating in excess of 10 percent for the period beginning April 4,
2006.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The Veteran served on active duty from March 1982 to December
2004.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating action by the
Department of Veterans Affairs (hereinafter VA) Regional Office
in St. Petersburg, Florida, (hereinafter RO). Two additional
claims that were timely appealed to the Board, entitlement to
service connection for right and left carpal tunnel syndrome,
were granted by the RO in a November 2009 rating decision.
The claim with respect to entitlement to a compensable initial
rating for a lumbar spine disability for the period beginning
January 1, 2005, and a rating in excess of 10 percent for the
period beginning April 4, 2006, addressed in the REMAND portion
of the decision below requires additional processing and is
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. A VA examiner has linked current disability due to the
plantar fasciitis to service.
2. Arthritis of the hips is not shown within one year of
service.
3. There is no competent evidence indicating that the veteran
has a current disability due to arthritis of the hips that is
related to service.
4. There is a full range of motion in the right shoulder.
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in favor of the Veteran,
plantar fasciitis was incurred in service. 38 U.S.C.A. §§ 1110,
1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009).
2. Bilateral hip arthritis was not incurred in or aggravated by
service and may not be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
3. The criteria for a compensable initial rating for right
shoulder arthritis are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107
(West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a). Without deciding whether the notice and
development requirements of VCAA have been satisfied with respect
to the issue, it is the Board's conclusion that this law does not
preclude the Board from adjudicating the issue involving the
Veteran's claim for service connection for bilateral plantar
fasciitis. This is so because the Board is taking action
favorable to the Veteran with respect to this claim in the
decision below. As such, the decision with respect to this issue
below poses no risk of prejudice to the Veteran. See, e.g.,
Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v.
Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg.
49,747 (1992). Because the claim for service connection for
plantar fasciitis will be granted in this decision, the Board
notes that it will not be necessary to direct the RO upon remand
to obtain the records from a private podiatrist as requested by
the Veteran's representative in his July 2010 presentation to the
Board.
The duty to notify was fulfilled in the instant case with respect
to the claim for service connection for bilateral hip arthritis,
prior to initial adjudication of this issue, by letter dated in
January 2006. As for the claim for an increased rating for a
right shoulder disability, the Federal Circuit held that 38
U.S.C. § 5103(a) does not require VA to provide notice of the
information and evidence necessary to substantiate a claim upon
receipt of a notice of disagreement with the rating and effective
date assigned by a RO following an award of service connection.
See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In
this regard, once the March 2005 rating decision was made
awarding service connection, an effective date, and a rating for
the award of service connection for right shoulder arthritis,
5103(a) notice had served its purpose, as the claim had already
been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419
(2006).
As for the duty to assist, the service treatment reports, private
clinical reports, and reports from VA examinations have been
obtained. The reports from the VA examinations contain
sufficient information with respect to the question of the
whether the Veteran's bilateral hip arthritis is the result of
service and clinical findings as to the severity of the service-
connected right shoulder arthritis to equitably adjudicate the
claims for, respectively, service connection for bilateral hip
arthritis and entitlement to an increased rating for right
shoulder arthritis. As there is no indication that there are
additional records that need to be obtained that would assist in
the adjudication of the claims adjudicated below, the duty to
assist has been fulfilled with respect to these claims.
II. Legal Criteria/Analysis
It is the Board's responsibility to evaluate the entire record on
appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an
approximate balance in the evidence regarding the merits of an
issue material to the determination of the matter, the benefit of
the doubt in resolving each such issue shall be given to the
claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102
(2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
Court of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The Court
has also stated, "It is clear that to deny a claim on its
merits, the evidence must preponderate against the claim."
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.
A. Service Connection Claims
Service connection may be granted for disability resulting from
personal injury suffered or disease contracted during active
military service, or for aggravation of a pre-existing injury
suffered, or disease contracted, during such service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. There are
some disabilities, including arthritis for which service
connection may be presumed if the disorder is manifested to a
degree of 10 percent or more within one year of separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309.
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless clearly
attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When
a condition noted during service is not shown to be chronic, or
the fact of chronicity in service is not adequately supported,
then a showing of continuity of symptomatology after discharge is
required to support the claim. Id. Service connection may also
be granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. § 3.303(d).
The Court has held that, in order to prevail on the issue of
service connection, there must be medical evidence of: (1) a
current disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease or
injury; and (3) medical evidence of a nexus between the claimed
in-service disease or injury and the present disease or injury.
Hickson v. West, 12 Vet. App. 247, 253 (1999).
Medical evidence is generally required to establish a medical
diagnosis or to address questions of medical causation; lay
assertions of medical status do not constitute competent medical
evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992). However, lay statements may serve to support a
claim for service connection by supporting the occurrence of lay-
observable events or the presence of disability or symptoms of
disability which may reasonably be observed by laypersons. 38
C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed.
Cir. 2006) (addressing lay evidence as potentially competent to
support presence of disability even where not corroborated by
contemporaneous medical evidence).
1. Bilateral Plantar Fasciitis
The service treatment reports, to include the reports from the
September 2004 separation examination and medical history
collected at that time, do not reflect plantar fasciitis. After
service however, the Veteran asserted to the VA examiner who
conducted a February 2007 VA examination that she first noted
pain during service in 1989 while on active duty, and she
attributed this pain to prolonged walking and standing. The
examiner, while noting that the condition was not shown in the
service treatment reports, concluded as follows:
In this case it seems to me to be
reasonable that a US army [V]eteran of
twenty years service, having marched, ran
and having been on field maneuvers[,] could
have developed a bilateral plantar
fasciitis (and metatarsalgia), and given
that her subsequent work after separating
from the military has been sedentary[,] it
is at least as likely as not that this
condition was caused by or a result of the
demands of her 20 year military career.
Unless the preponderance of the evidence is against the Veteran's
claim, it cannot b denied. 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; Gilbert, supra. Thus, as there is no competent evidence
to contradict the opinion following the February 2007 VA
examination set forth above, the Board will exercise its
discretion to find that the evidence is at a minimum in relative
equipoise, and conclude that service connection for plantar
fasciitis may be granted. Id.
2. Bilateral Hip Arthritis
A June 2004 service treatment report shows the Veteran presenting
to a medical clinic with low back and left hip pain. The
examination revealed mild left sacroiliac tenderness, and the
assessment was probable mechanical low back pain and left
sacroileitus. There is no other evidence of a hip disability on
the service treatment reports, and a hip disability was not shown
at the September 2004 separation examination or in the medical
history collected at that time.
After service, an April 2006 VA examination showed the Veteran
complaining about hip pain, among other musculoskeletal pain. No
disability in the hips was diagnosed at that time, and the
examiner stated that he was unable to determine whether the
Veteran's bilateral hip pain was related to service. After
service, an x-ray of the hips conducted in conjunction with the
February 2007 VA examination showed mild bilateral degenerative
arthritis of the hips. The physical examination of the hips was
normal and the examiner stated that there were no significant
occupational effects and no effects on usual daily activities due
to arthritis of the hips. The examiner also classified the
arthritis as "age related." With respect to an opinion as to
whether the Veteran's hip arthritis is the result of service, it
was stated as follows:
Since the diagnosis of bilateral hip
arthritis is not sustainable on the basis
of objective examination[,] no further
action is required for this condition.
Review of the remaining evidence of record does not reveal any
competent evidence linking arthritis of the hips to service.
As noted above, the only reference to the hips in the service
treatment reports is in the context of the June 2004 treatment
that resulted in an impression of mechanical low back pain and
left sacroileitus, but not a hip disability. Serve connection
has been granted for a lumbar spine disability; as such, service
connection appears to have been granted for the symptomatology
described at this June 2004 treatment. The post-service evidence
does not contain any medical opinion linking hip arthritis to
service, and arthritis was first shown by x-ray in 2007, which
was not within the one year presumptive period for a grant of
service connection for arthritis. As for the Veteran's
assertions that her bilateral hip arthritis is related to
service, such assertions cannot be used to establish a claim as a
layperson is not qualified to render a medical opinion regarding
the etiology of disorders and disabilities. Espiritu; cf.
Jandreau. As such, and given the lack of any competent evidence
of record demonstrating that there is a current disability
associated with bilateral hip arthritis that is the result of
service, service connection for bilateral hip arthritis cannot be
granted. Hickson, supra.
Finally, in reaching this decision, the Board considered the
doctrine of reasonable doubt; however, as the preponderance of
the evidence is against the Veteran's claim for service
connection for bilateral hip arthritis, the doctrine is not for
application. Gilbert, supra.
B. Increased Rating for Arthritis of the Right Shoulder
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate
diagnostic codes identify the various disabilities.
Where an increase in the disability rating is at issue, the
present level of the Veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged
ratings may be assigned as warranted by the facts.
Degenerative arthritis established by X-ray findings is rated on
the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when
limitation of motion due to arthritis is noncompensable under the
appropriate diagnostic code, a rating of 10 percent is for
application for each such major joint or group of minor joints
affected by limitation of motion, to be combined, not added under
DC 5003.
Normal forward elevation of the shoulder is from 0 to 180
degrees, normal abduction is from 0 to 180 degrees, normal
external rotation is from 0 to 90 degrees and normal internal
rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I.
Limitation of motion of the major arm (the Veteran is right-
handed) to shoulder level is evaluated 20 percent disabling.
Limitation of motion of the arm midway between side and shoulder
level is 30 percent disabling, and limitation of motion of the
arm to 25 degrees from the side is evaluated as 40 percent
disabling. 38 C.F.R. § 4.71a, DC 5201.
The Veteran underwent surgery of the right shoulder during
service, and a VA examination conducted shortly after service in
November 2004 noted arthritis in the right shoulder with a normal
range of motion. The examination of the right shoulder in
February 2007 noted no deformity, giving way, instability,
incoordination, locking episodes, effusions, inflammation or
flareups of joint disease but did reveal pain, stiffness,
weakness, and decreased speed of joint motion. Motion in the
right shoulder was full and painless and repetitive motion did
not result in pain or additional loss of motion.
The above range of motion testing did not reveal any limitation
of motion in the right shoulder, and there is otherwise no
clinical evidence of any loss of motion in the right shoulder.
As such, a compensable rating cannot be assigned under DC 5201.
Review of the other potentially applicable diagnostic codes
pertaining to the rating of shoulder disabilities codified at DCs
5200 to 5203 does not reveal a provision under which a
compensable rating could be assigned for the right shoulder
disability given the clinical findings of record at any time
subsequent to the effective date of the initial rating, January
1, 2005. See 38 C.F.R. § 3.400 (2009); Fenderson, supra.
In making the above determination, the Board has also considered
the provisions of 38 C.F.R. § 4.40 with regard to giving proper
consideration to the effects of pain in assigning a disability
rating, as well as the provisions of 38 C.F.R. § 4.45 and the
holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the
clinical evidence has not shown that entitlement to increased
compensation is warranted on the basis of loss of motion,
weakness, excessive fatigability or lack of endurance or
incoordination during flareups of pain after repetitive use, and
the February 2007 VA examination report above specifically
reflects consideration of the DeLuca criteria.
In exceptional cases where schedular evaluations are found to be
inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service, for
consideration of "an extra-schedular evaluation commensurate
with the average earning capacity impairment due exclusively to
the service-connected disability or disabilities." See
Barringer v. Peak, 22 Vet App 242 (2008) The governing norm in
these exceptional cases is: A finding that the case presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical the
application of the regular schedular standards." Floyd v.
Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the
schedular evaluation is not inadequate. As indicated, a
compensable rating is provided for certain manifestations of the
Veteran's service-connected residuals, but those manifestations
are not present in this case. Moreover, the Board finds no
evidence of an exceptional disability picture, as the
service-connected residuals have not shown functional limitation
beyond that contemplated by the noncompensable rating currently
assigned. Accordingly, referral of this decision for
extraschedular consideration is not indicated.
Finally, in reaching this decision, the Board considered the
doctrine of reasonable doubt; however, as the preponderance of
the evidence is against the Veteran's claim for an increased
initial rating for right shoulder arthritis, the doctrine is not
for application. Gilbert, supra.
ORDER
Entitlement to service connection for bilateral plantar fasciitis
is granted.
Entitlement to service connection for bilateral hip arthritis is
denied.
Entitlement to a compensable initial rating for right shoulder
arthritis is denied.
REMAND
Evidence pertinent to the Veteran's appeal with respect to the
level of compensation assigned for her service connected low back
disability in the form of a private clinical report was received
in March 2010 but has not been considered by the RO as required
by 38 C.F.R. § 19.31. This evidence noted that the Veteran had
"progressive" back problems, and the Veteran's representative
has contended that the Veteran's back disability has worsened.
Given the assertions as to a worsening in the severity of the
service-connected low back disability since she was last
examined, the Board concludes that a VA examination to assess the
current severity of the service-connected back disorder is
necessary in this case in order to comply with the duty to assist
provisions of the VCAA. See 38 U.S.C.A. § 5103A(d);
38 C.F.R. § 3.159(c)(4). See also Green v. Derwinski, 1 Vet.
App. 121, 124 (1991) (finding that fulfillment of the statutory
duty to assist includes the conduct of a thorough and
contemporaneous medical examination, one which takes into account
the records of the prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one). Accordingly, the case is REMANDED for the following
action:
1. After confirming the location at which
the Veteran is receiving treatment for her
low back disability, an effort should be
made to obtain copies of any records of
such treatment dated since 2008.
2. Next, the Veteran should be afforded a
VA examination to determine the current
extent of the impairment resulting from her
service-connected back disorder. The
claims files should be made available to
and reviewed by the examiner in conjunction
with the examination. All pertinent
symptomatology and findings should be
reported in detail. Any indicated special
diagnostic tests that are deemed necessary
for an accurate assessment should be
conducted. The examiner should record
pertinent medical complaints, symptoms, and
clinical findings, to include the range of
thoracolumbar spine motion in degrees. The
examiner should also determine whether
there is weakened movement, excess
fatigability, or incoordination
attributable to the service-connected back
disorder expressed, if feasible, in terms
of the degree of additional range of motion
loss or favorable or unfavorable ankylosis
due to any weakened movement, excess
fatigability, or incoordination; and
express an opinion as to whether pain in
the lumbar spine could significantly limit
functional ability during flareups or
during periods of repeated use, noting, if
feasible, the degree of additional range of
motion loss or favorable or unfavorable
ankylosis due to pain on use or during
flareups.
Additionally, the examiner should provide
an opinion as to whether the Veteran's
complaints are consistent with the
objective clinical findings, and whether
her lumbar spine disability limits her
ability to work, or affects her ability to
obtain and maintain substantially gainful
employment. A complete rationale for all
opinions must be provided.
3. The RO must notify the Veteran that it
is her responsibility to report for the
examination and to cooperate in the
development of this claim. The
consequences for failure to report for a VA
examination without good cause may include
denial of the claim. 38 C.F.R. §§ 3.158,
3.655 (2010). In the event that the
Veteran does not report for the
aforementioned examination, documentation
must be obtained which shows that notice
scheduling the examination was sent prior
to the examination to the last known
address. It must also be indicated whether
any notice that was sent was returned as
undeliverable.
4. Thereafter, the appeal with respect to
the claim for increased compensation for
the service-connected low back disability
must be readjudicated by the RO. If this
readjudication does not result in a
complete grant of all benefits sought by
the Veteran in connection with this claim,
the Veteran and her representative must be
provided a supplemental statement of the
case that includes a discussion of the
private clinical reports received in March
2010 and the reports from the examination
requested above. An appropriate period of
time must be allowed for response.
Thereafter, the case must be returned to
the Board.
No action is required by the Veteran until she receives further
notice; however, she may present additional evidence or argument
while the case is in remand status at the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs